Omuka v Air Travel & Related Studies Centre (Cause 778 of 2019) [2024] KEELRC 1750 (KLR)
The bottom line
#A Kenyan court awarded a lecturer KShs 4.69 million because his employer fired him without stating a reason or following fair procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's termination of employment was unfair and unlawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the termination was substantively unfair
The termination was substantively unfair because the termination letter did not specify any reason and the alleged reason of absconding was not indicated in the letter
The court perused the notice of termination of 28th May 2019 and found it did not specify the reason for termination. The Respondent's witness testified the reason of absconding was indicated in the letter, which the court found untrue. The witness also confirmed an exchange between the Claimant and the Director before termination. Without a reason stated, the requirement of a valid and fair reason under section 43 was not met.
Whether the termination was procedurally fair
The termination was procedurally flawed as no show cause letter or disciplinary hearing preceded it
Section 41 prescribes a mandatory procedure before termination. The Respondent's witness confirmed the Claimant was not served with specific allegations and asked to respond, and the purported show cause letter related to 2018, not the 2019 termination. No charges were levelled against the Claimant. Payment in lieu of notice could not cure the procedural defect.
Whether the discharge voucher barred the Claimant's claim
The discharge voucher did not bar the claim as it did not specify which dues were paid or what claims were waived
The Claimant alleged he signed the discharge voucher under duress, needing money for his children and being told to clear before being paid. The court found the voucher indicated 'final dues' without specifications, following the Kenol Kobil case on equitable estoppel. Accordingly the Respondent could not rely on estoppel.
Whether the Claimant proved entitlement to unpaid commission
The Claimant was awarded Kshs 3,600,000/= being commission for 360 students at Kshs 10,000/= per student
The commission of Kshs 10,000/= per new student who paid first term fees in full was provided in the January 2018 contract. The admission documents were in the custody of the Respondent, who as custodian of employment records did not produce them, and did not dispute that the Claimant enrolled students. The oral reduction of the commission to Kshs 5,000/= without consent offended the Employment Act.
Whether the Claimant was entitled to notice pay and leave days
One month's salary in lieu of notice was awarded as the discharge voucher did not show payment of May and June salary; 30 (not 42) pending leave days were awarded
The services were terminated with immediate effect on 28th May 2019. The alleged June salary in the discharge voucher was not signed by the Claimant, and the Respondent's witness acknowledged there was no entry for May and June salary. On leave, the Respondent's own leave forms showed 30 pending days between 2016 and 2019; notice period cannot be converted into leave.
Legal principles established
#- Termination must be supported by a valid and fair reason under section 43 of the Employment Act
- Section 41 of the Employment Act sets out a mandatory procedure before termination, including explanation of reasons and consideration of the employee's representations
- A discharge voucher that does not specify the dues paid or the claims waived cannot found an equitable estoppel against an employee
- The burden of proving and justifying the grounds for termination rests on the employer under section 47(5) of the Employment Act
- Variation of an employee's contractual terms such as commission must be done with the employee's consent and in writing
Court orders
#- 1.One month salary in lieu of notice of Kshs 90,000/=
- 2.Unpaid leave for 30 days of Kshs 103,841.15/=
- 3.Unpaid commission of Kshs 3,600,000/=
- 4.Responsibility Allowance - NIL
- 5.Service Charge - NIL
- 6.10 months' salary as compensation for unlawful termination of Kshs 900,000/=
- 7.Total award of Kshs 4,693,841.15/= subject to taxes and statutory deductions, with interest at court rates from date of judgment until payment in full
- 8.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Relief refused
#Responsibility Allowance
The allowance was verbal, not in writing and not part of the contract, and no evidence of the alleged Kshs 100,000/= payment was produced
Service Charge
Claimant was a member of NSSF, an exception under section 35(6) of the Employment Act
Costs
The Claimant's claim is allowed with costs to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion I am of the view that the Claimant's termination was procedurally fiawed hence the Claimant was unfairly terminated.
Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical incapacity.
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the afiected employee has not been accorded a hearing in the presence of their union representative.
In conclusion the Claimant's claim is hereby allowed with costs as follows;
Items (a), (b), (c) and (f) shall be subject to taxes and statutory deductions but shall attract interest at Court rates from the date of the judgment until payment in full.
Issues in the judgment
#The prayer in the claim seeks a declaration that termination took effect from 5/7/2017 while the evidence and judgment proceed on a termination date of 28th May 2019; the Claimant clarified the correct date in evidence
The Respondent's response avers the Claimant absconded leading to termination 'sometimes in May 2018' and reinstatement in July 2018, which conflicts with the pleaded termination of 28th May 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omuka v Air Travel & Related Studies Centre (Cause 778 of 2019) [2024] KEELRC 1750 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1750/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.